Shahatit v Penrith City Council
[2013] NSWLEC 1142
•02 August 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Shahatit v Penrith City Council [2013] NSWLEC 1142 Hearing dates: 17-18 July 2013 Decision date: 02 August 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed
Catchwords: Development Application, child care centre, objections to development standards Legislation Cited: Penrith Local Environmental Plan 1998 (Urban Land):
State Environmental Planning Policy No. 1 - Development Standards;
Environmental Planning and Assessment Act 1979Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Texts Cited: Penrith Development Control Plan 2006; AS/NZS2890.1:2004;
Disability (Access to Premises - Buildings) Standards 2010Category: Principal judgment Parties: Peter Shahatit (Applicant)
Penrith City Council (Respondent)Representation: Solicitors
Mr C Drury
Mr J Fan
Pikes & Verekers Lawyers (Applicant)
Sparke Helmore (Respondent)
File Number(s): 10016 of 2013
Judgment
Mr Shahatit lodged Development Application DA12/0420 with Penrith City Council on 25 May 2012 seeking consent to demolish an existing two storey dwelling and construct a new building and use the ground level of that building as a 24 place child care centre and the upper level as a dwelling at 85 Warburton Crescent Werrington County. The application was refused on 20 December 2012 and Mr Shahatit is appealing that decision.
The issues in the case are whether the departures from the council's planning controls are unreasonable and unnecessary, amenity impacts, streetscape, parking and access and the public interest.
The site and the locality
The site comprises Lot 735 in DP 259430 and is known as No 85 Warburton Crescent, Werrington County. It is a regular shaped allotment with a frontage of 18.5m, depth of 33.785m, site area of 625sqm and fall of approximately 1m from front to rear. It is affected by a 2m wide drainage easement that runs along the south-eastern boundary of the site.
A two storey dwelling house is currently erected on the land and would be demolished to facilitate the redevelopment proposed.
The locality in the vicinity of the site contains a mix of single and two storey dwelling houses with a local park diagonally opposite. Development adjacent and in proximity to the site is constructed on a relatively consistent building alignment.
Dampier Avenue intersects Warburton Crescent at the prolongation of the site's north-western boundary. Warburton Crescent, a loop road that connects to Henry Lawson Drive, contains a number of curves, the closest bend in the road being approximately 40m to the north-west.
Background and the proposal
The original application sought consent for a 24 place child care centre and associated dwelling house and provided 7 carparking spaces within the front setback.
Following a conciliation conference facilitated by another Commissioner of this Court, the applicant amended the proposal so that it now proposes the demolition of the existing dwelling, construction of a new two storey building containing a 20 place child care centre on the ground floor and a three bedroom dwelling on the first floor. The centre would provide four places for children aged 0-2, five places for 2-3 year olds and 11 places for 3-5s and operate from 7am to 6pm. Three to four persons would be employed at the centre. The council seeks to impose a condition of consent that requires the centre to be operated by the occupant of the dwelling and impose a restriction on the title of the land to ensure this occurs. The applicant opposes the restriction to user and accepts the dwelling is to be occupied by the operator of the centre. Seven parking spaces including one accessible space are proposed at the front of the site.
The proposed building would be setback 13.1m from Warburton Crescent, 2.5m from the south-eastern and 2m from the north-western side boundaries and 9.403m from the rear boundary. Carparking would be accessed off a central driveway located 6.3m from the north-western side boundary. A landscaped planter varying in width from 2.1m to 2.2m is provided across the frontage of the site on either side of the driveway. That landscaped strip returns along the side boundaries to the front of the building and is 1m wide on the south-eastern side and shown as 1.5m on the opposite side however, in that location, the carparking spaces overhang the landscaped area which, to provide a space that is 5.5m long, would reduce the effective width of the landscaped strip to 800mm. This issue is discussed in detail below.
The rear of the site would be used as the child care centre's outdoor play area and would either be a lawn area of finished with soft fall. A shade structure approximately 7m x 4.5m is proposed within the play area. A garbage storage area is proposed in the side setback and the open space area for the dwelling is provided in the form of a balcony to the north of the building off its living areas.
The planning controls
The site is zoned Residential 2(b) Residential Low Density under Penrith Local Environmental Plan 1998 (Urban Land) (LEP). The development is permissible with consent. The aims and objectives of the plan are contained in clause 7 and those relevant to the application are:
(e) Residential character
(i) to promote the community's desired character by ensuring that future development in all residential localities reflects features or qualities of traditional detached houses that are surrounded by private gardens, and
(ii) to enhance the essential character and identity of established residential areas, and
(iii) to protect items of environmental value, particularly mature vegetation and significant watercourses, significant buildings and gardens, or scenic landscapes and views, and .....
(f) Residential amenity
(i) to promote development which safeguards the residential amenity of the area,
(ii) to provide for high levels of residential amenity, particularly acoustic and visual privacy, accessibility to services, climatic comfort of the indoor environment, and safety and security, and ......
(g) Employment
to permit small-scale business activities within residential areas which do not significantly adversely affect residential amenity,
In accordance with clause 9(2), consent must not be granted to development of land unless the council:
(a) is satisfied that the carrying out of such development is consistent with:
(i) the aims of this plan, and
(ii) the objectives of the zone within which the development is to be carried out, and
(iii) the objectives of the development controls contained within this plan, and
(b) has considered the objectives of any development control plans applying to the land.
The objectives of the 2(b) zone are:
(i) to reinforce the importance of natural landscape settings and areas with heritage conservation values, and
(ii) to promote the established urban and landscape character of traditional residential subdivisions by limiting the range of permissible uses, and
(iii) to allow a limited range of compatible non-residential uses.
Clause 12 of the LEP contains a number of development standards that apply to development in the 2(b) zone, specifies the objectives of those standards and contains definitions relevant to the clause. The relevant provisions are:
(1) The objective of this clause is to prescribe building envelopes, external wall heights, landscaped areas and rear boundary setbacks which:
(a) achieve site-responsive development at a scale which is compatible with existing housing in the locality by controlling visual impacts relating to height and bulk, and
(b) minimise the impact of loss of privacy, overshadowing and loss of views, and
(c) achieve an appropriate separation between buildings and site boundaries and preserve private open space corridors along rear fence lines, and
(d) protect and enhance the environmental features, which are characteristic of each of the residential zones, by requiring sufficient space on-site for effective landscaping and on-site stormwater detention.
(2) For the purposes of this clause:
building envelope for a site means a height plane over the site at 45 degrees from a specified height above natural ground level at the side boundaries of the site, as described in Diagram 1.
external wall height of a building means the vertical distance measured between natural ground level at any point at which the building is sited and the topmost point of any external or enclosing wall within the development site, but excluding the sides and faces of any dormer windows, as described in Diagram 1.
landscaped area, of a site, means that part of the site not occupied by a building and which is predominantly landscaped with gardens, lawns, shrubs and trees and is available for the use and enjoyment of the occupants of the site. It does not include areas used for driveways, parking areas, garbage storage areas or any area less than 2 metres wide, except a verge at least 1 metre wide that is located next to a driveway and landscaped with trees and shrubs, but may include a verandah associated with a landscaped area.
verandah associated with a landscaped area means a verandah that:
(a) is attached to a dwelling, and
(b) is associated with a landscaped area that is designated open space for that dwelling and which is not greater than 15m2 in area.
(3) The council must not grant consent to development that involves the erection of a building in Zone No 2 (a1), 2 (a), 2 (b), 2 (c), 2 (d) or 2 (e) unless the building is wholly within the building envelope, and does not contravene the maximum external wall height or minimum landscaped area, for the zone calculated in accordance with Table 4 below:
Table 4
Zone No.
Building envelope
specified height at
side boundary
Maximum external wall height
Minimum landscaped area
2 (b)
1.8 m
6.5 m
50%
(4) The council must not grant consent to development that involves the erection of a building unless:
(a) that building is set back at least 6 metres from the rear boundary of the site or, in the case of a single storey building in Zone No 2 (a), 2 (b), 2 (c), 2 (d) or 2 (e), at least 4 metres from the rear boundary of the site, and
(b) the land within the rear boundary setback is used for the purposes of landscaped area only.......
(6) Despite any other provisions of this clause, the council may consent to a building which is not wholly within the relevant building envelope or contravenes the maximum wall height control if, in the opinion of the council, the application demonstrates that a variation to those controls is necessary to improve the design, external appearance or utility of the proposed building.
(7) Despite any other provision of this clause, the council may consent to the erection of a non-habitable building or structure ordinarily associated with a dwelling-house that does not comply with the requirements of this clause if, in the council's opinion, the proposed building or structure will have a minimal adverse impact on the subject site and any adjoining site.
The development does not comply with the development standards for building envelope. There is dispute between the parties whether the standards for landscaped area and rear boundary setbacks are met. Despite this fact, the applicant has submitted objections to the development standards pursuant to the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP1).
Clause 14 provides design principles for development and states:
The council must not consent to development unless the council is of the opinion that the proposed development has taken into account the following:
(a) reinforcement and protection of local topography and setting,
(b) reflection of the forms, features or qualities of traditional residential neighbourhoods across Penrith local government area,
(c) consistency or compatibility with the scale, design and amenity of neighbouring development,
(d) contribution to attractive streetscapes through the diversity of building forms and landscaped areas that can be seen from any public place nearby,
(e) provision for contemporary standards of amenity within each dwelling and the associated private open space,
(f) preservation and enhancement of any significant vista that currently might be available from a public place nearby.
Penrith Development Control Plan 2006 (DCP) applies to the site, the objectives of which must be considered in accordance with the provisions of clause 9(2)(b) of the LEP. The provisions of Part 2 Section 2.11 - Carparking, Part 3 Section 3.3 Child Care Centres and Part 4 Section 4.2 Residential - Single Dwellings are particularly relevant to the application.
The objectives of the controls for child care centres are:
(a) provide a clear planning framework for the development of child care services in the City of Penrith;
(b) ensure that development meets sound environmental planning practices and standards;
(c) ensure consistency between Council's requirements for development and those of the licensing authority (the NSW Department of Community Services);
(d) ensure that child care centres are located and designed to minimise any impact on the amenity of the surrounding area;
(e) ensure that child care centres are located and designed to provide children with an active local environment;
(f) enhance the landscape character of the area;
(g) minimise any adverse impact to residential development of noise from traffic generated by child care centres;
(h) ensure a safe and efficient road system, and to prevent direct vehicular access to or from any child care centre from a designated road;
(i) ensure the provision of safe, convenient and attractive carparking areas;
(j) ensure child care centres are not adversely affected by safety hazards; and
(k) encourage the provision of facilities which aim to satisfy identified unmet demands within the City area for child care.
Specific controls for amenity, location, vehicle access and parking, noise, shade, landscaping, private dwelling, toilet facilities, fire safety and emergency exits, floor space, out of school hours care and work based child care centres are included in Part 3. Those controls relevant to the contentions in the case are detailed below.
The amenity provisions require:
1. Child care centres catering for 15 or more children shall be purpose designed and built, to satisfy the requirements of this section and the requirements of NSW Department of Community Services. Modifications to existing dwellings will not be supported.
2. The scale and character of the development shall be compatible with surrounding residential development.
3. To ensure the safe operation of car parking areas, and to ensure the amenity of neighbouring residents, a minimum site frontage of 22 metres shall be required.
Location controls relevant to the application are:
4. Child care centres shall be located in close proximity to other community activities and facilities, such as schools, neighbourhood halls, churches, larger formal public reserves and local shopping centres. ......
6. The site shall not be located in a cul-de-sac, at an intersection, or on a minor residential road where additional vehicles associated with the child care centre may create traffic conflict or an adverse impact on the amenity of the locality. ......
Parking and access controls require:
9. Car parking spaces shall be provided on site at the rate of 1 car parking space for every 4 children. .......
11. The parking area is to be designed to ensure -
(a) the safe drop off and collection of children;
(b) direct and safe pedestrian access to and from the entrance of the centre;
(c) safe movement and parking of staff, parents, visitors and service vehicles;
(d) easy, forward access to and from the street.
12. Safe and adequate access for service and emergency vehicles, such as ambulances, delivery and maintenance vehicles, shall be indicated on the site plan.
Shade controls require:
16. Outdoor playing areas are to comply with the safe shade requirements specified in Council's Policy for Minimum Shade Provision in Public Places, which includes the following requirements -
(a) all play equipment shall be partially located in safe shade,
(b) safe shade may be created by vegetation or shade structures,
(c) some play equipment should be portable so that it can be relocated to safe summer and winter shade - this can be an alternative or in addition to fixed equipment,
(d) safe summer shade is to be provided to a minimum 50% of the total outside open play area,
(e) sandpits are to be provided with year round full protective shade,
(f) outdoor teaching areas are to be provided with year round protective shade,
(g) outdoor eating areas are to be provided with year round shade.
Landscaping controls require:
17. Landscape planting shall complement the building(s) and the streetscape, and provide screening for car parking and outdoor playing areas.
18. Landscaping shall be established prior to the use commencing.
19. Childproof fencing and gates shall be provided around the outdoor play areas, and to the entrance of the child care centre. Details of all fencing shall be included on the landscape plan.
20. Landscape planting (a minimum width of 2 metres) shall be provided along the front boundary of the site.
21. Additional landscape planting may be required along the side boundaries to integrate the development with neighbouring buildings and the streetscape, and to reduce the impact of vehicle lights on adjoining properties.
22. A landscape plan shall be submitted with the application to Council. Information is to include species, number of plants, pot size and height at maturity.
23. Plant species shall be chosen to address the characteristics of the site, and shall -
(a) provide protection from prevailing winds,
(b) provide screening to minimise impacts on privacy and/or the streetscape and adjacent buildings,
(c) provide shelter and shade,
(d) reduce reflection from bright surfaces,
(e) emphasise pedestrian and vehicular routes,
(f) ensure visibility of outdoor playing areas, and
(g) not include plants which may be toxic, create allergic reactions, prickly or otherwise unsafe.
The private dwelling controls are:
24. A dwelling house may be attached to, part of, or associated with, a child care centre.
25. The dwelling shall be provided with a separate and private open space area (with minimum dimensions of 4m x 6m), which is directly accessible from the internal living areas of the dwelling and orientated to optimise solar access.
26. The dwelling shall include a kitchen, bathroom, laundry, living area and amenities, which are separate to those for the child care centre, for the use of the residents.
27. A minimum of one separate parking space shall be provided for the residents of the dwelling. .......
The issues
The contentions in the case are whether the development provides sufficient landscaped open space and if it does not satisfy the development standard contained in clause 12 of the LEP; whether the SEPP 1 objections to the development standards for landscaped area, building envelope and rear boundary setbacks should be upheld; whether the development is compatible with the existing residential character and adversely impact on the amenity of the area; whether the design of the carpark provides for safe vehicular and pedestrian access; whether the site is adequate and in a suitable location for a child care centre and whether the application is in the public interest.
The evidence
The hearing commenced on site and evidence was heard from a number of objectors to the application. The issues raised are summarised as being:
- Non-compliance with the council's planning controls;
- Unsafe location of site on a steep grade, blind curve and opposite a T-junction, has been a fatality opposite the site and other accidents nearby;
- Parking spaces are non-compliant and no area for turning delivery or emergency vehicles, vehicles will reverse out of site which is unsafe;
- Adverse impact on amenity, streetscape, privacy, noise, lighting, sunlight;
- Loss of property values;
- Shift workers so need to sleep during the day;
- Existing child care centres have vacancies so another centre is not needed in the area;
- No footpaths so development will create an unsafe pedestrian environment;
Expert town planning evidence was heard from Mr John Coady for the applicant and Ms Tania Shephard for the council.
The experts agree that the development provides parking in accordance with the numerical requirements of the DCP but disagree whether it is designed to provided safe vehicular and pedestrian access. Ms Shephard says a separate pedestrian path should be provided, in accordance with control 11 of the DCP, within the carparking area to facilitate access to the centre because it is unsafe to utilise the driveway/manoeuvring area where conflict between pedestrians and vehicles will occur. Mr Coady says a separate path is not required, that the design is safe and any risk "miniscule".
It is also agreed that the location of the proposed driveway does not comply with the requirements of AS/NZS2890.1:2004 as it is too close to the intersection of Warburton Crescent and Dampier Avenue. Mr Coady says that because the standard applies to main roads such as Parramatta Road as well as the subject site and only 2.3m of the driveway encroaches the required 6m minimum offset compliance with the standard in this case is not required and that there are no unacceptable risks associated with the location. Ms Shephard disagrees and says that there is the potential for conflict between vehicles using the intersection and leaving/entering the site which was confirmed through the residents' evidence.
The experts agreed that the development standard for building envelope is not satisfied, that the extent of variation is minor, restricted to the eaves of the building. The council did not press this issue and supports the objection to the development standard under SEPP1.
In relation to the provisions of clause 12(4)(a), Mr Coady says that the shade structure would be permitted by the exclusions provisions of clause 12(7) which provide for the erection of a non-habitable building or structure ordinarily associated with a dwelling within the required 6m rear boundary setback. If this is not the case, he has prepared an objection to the development standard (Annexure D to exhibit H) and says that it would be used by occupants of the site, could be reconfigured such that it does not infringe the 6m setback but would be less practicable, does not have many of the features normally associated with a building in that it is an open, see-through structure. Its built form minimises any building bulk and visual effects, is 2.5m at it maximum height, is compatible with the existing housing in the locality and satisfies the objectives listed in clauses 12(1)(a), (c) and (d) of the LEP.
Ms Shephard says that the exclusion clause does not apply as the structure is not associated with the dwelling house and, in accepting such structures may be found in backyards of dwellings, says the proposed structure is larger than would typically be found in those circumstances and its impacts result in failure to achieve the objective of the standard.
Each expert used different rationale in calculation of the landscaped area provided. They agree that 50% of the site area is the minimum landscaped area required under clause 12 of the LEP. The site area is 625.023sqm and therefore a landscaped area of 312.5115sqm would be required. Mr Coady calculates the landscaped area by subtracting the building footprint, bin enclosure and the hardstand carparking area from the site area and concludes that 315.353sqm or 50.45% of the site would be available for landscaping.
Ms Shephard excludes that area shown as landscaped but forming part of parking spaces 5/6 (disabled space), 7 and 8 and says that the area would be subject to the vehicle overhang as those spaces are only 4.8m wide rather than the 5.5m length required under the DCP and deducts 15sqm for that area. She also deducts the area adjacent to the bin store as it does not have a width of 2m and concludes the landscaped area is 297.203sqm or 47.55% so does not comply with the development standard.
Both experts agreed that applying the definition of landscaped area in clause 12, further reductions would be required for the 1m wide strip along the north-eastern boundary as that area is not adjacent to a driveway and the 1m strip adjacent to the front façade of the building which is partly landscaped and paved for access. They had included those areas in their calculations. Mr Coady says that there is no requirement for the shared area adjacent to the disabled parking space to be sealed so it could be treated with grass placed onto sub-soil strengthening in the form of plastic mesh or some other form of pavement commonly found in landscaped area and therefore be included in the calculation. That would add 11.52sqm to the area provided.
Mr Coady says that any sensible interpretation of clause 12(3) in respect of minimum landscaped area will lead to the conclusion that the landscaped area incorporated in the proposed development satisfies the provisions of the clause however, if this is not the case he has prepared an objection to the standard (Annexure C to exhibit H). The objection states:
The childcare centre proposal makes generous provision for landscape treatment in front of the childcare centre building with 2.1m and 2.2m wide landscape strips along the front property boundary and 1.0 and 1.5m wide landscape strips adjacent to the side boundaries. This level of landscape treatment is significantly greater than the landscape treatment of the existing residential buildings fronting both sides of Warburton Crescent within the visual catchment of the site. The proposed development therefore satisfies Objective (d) listed in Clause 12(1) of PLEP 1998 which is to protect and enhance the environmental features which are characteristic of the Residential 2(b) zone, by providing sufficient space on-site for effective landscaping.
He concludes, "if the council's interpretation of landscaped area is correct, the consequent non-compliance with Clause 12(3) is so minor that the proposed development will not have an unacceptable, adverse impact on the amenity of the area and would be consistent with the public interest because it will assist to satisfy public demand for child care centres and the enrolment of only 20 children is small and capable of operating without any adverse effect on residential properties in the vicinity".
Ms Shephard says that a proper assessment of the SEPP1 objection requires consideration of all of the objectives of clause 12 of the LEP because the landscaped area defines the built form and how much development you can get on a site and how landscaped buffers can be provided. She is also concerned that the planting proposed within the front setback area can be maintained and reach maturity without conflicting with carparking and that, to be effective and serve its purpose it should provide separation between parking spaces and adjoining properties to protect the amenity of those residents.
Ms Shephard says that the SEPP1 objection fails to demonstrate that compliance with the development standard is unreasonable or unnecessary and does not satisfy the underlying purpose of the standards as contained in Clause 12(1) of the LEP. That is because the development fails to comply with the landscaped area development standard and when combined with the other non-compliances, results in a proposal that is an over-development of the site, the scale is not compatible with existing housing in the locality, does not provide appropriate separation between buildings, car parking area and side boundaries and open space areas are compromised by the presence of the shade structure. She submits that the development does not provide sufficient space for effective landscaping, particularly along side boundaries, that the front landscape strip will only provide limited relief from the visual impact of acoustic fencing and the extent of carparking and the unique residential character of Warburton Crescent will be compromised as a result.
Ms Shephard describes the character of the locality as having a very open character, consistent front setbacks, devoid of front fencing with very limited intrusions into the front setback, characteristic of early 1980s development. While the landscape treatment varies, with some dwellings having extensive garden planting, the front setbacks and lawn areas compensate in those cases where landscaping is not provided. She says the increased setback proposed detracts from the unique existing design character of the area and is exacerbated by the provision of acoustic fencing and a large extent of hard surface within the front setback.
Mr Coady says that child care centres are permitted with consent on the site and by their nature will never "look exactly the same" as a detached dwelling house, that there is no consistent streetscape theme in terms of either built form or landscaping, the dominant feature of properties opposite the site is the side boundary fencing, that, whilst there is merit in maintaining a consistent front building line, it should not be an overriding requirement because there are other examples of structures forward of the building line. He cites a number of fences forward of the building line and says that the proposed fence would not extent to the front property boundary and the net increase in front fencing is only about 6m.
Ms Shephard says the 22m minimum frontage required by the DCP is to ensure that a child care centre development can provide adequate, safe and effective carparking and access arrangements together with adequate landscaping to complement and buffer the development. She concludes the proposal is an overdevelopment of the site and this is demonstrated through the failure to comply with the development standards for landscaped area, building envelope and rear setback, the inability to provide sufficient landscaping to help integrate the design of the development into the streetscape, the impacts of the acoustic fencing and the extent of hard surface area associated with the car park, the erection of the shade structure within the rear boundary setback and the failure to provide an appropriate car parking design for the effective operation of the development that ensures safe and adequate access for vehicles, pedestrians and emergency vehicles.
Mr Coady disagrees and says the landscaped area is compliant and more generous than in most of the existing residential properties in the area, the shade structure will have a minimal adverse impact on the proposed development site, and on any adjoining site, the encroachment of the building envelope is only minor and that the non-compliance with the 22m frontage requirement has no significant consequences, is a standard that applies to all child care centres, regardless of enrolments, and is acceptable in this case. He says the carpark layout is appropriate and acceptable and makes adequate provision for safe and adequate access for pedestrians and emergency vehicles.
The council did not press its original contention that the location of the site was inappropriate, having regard to the proximity to the reserve to the north.
Mr Coady says that the opposition to the proposal does not constitute a legitimate public interest issue unless it has characteristics which generate unacceptable consequences which in not the case. Ms Shephard disagrees and says that the overall issue of public interest incorporates a number of matters raised by individual neighbours and the council aims to ensure that each development can satisfy the needs and expectations of the community and is of a nature and design compatible with adjoining development because the development fails to satisfy minimum development standards for landscaped open space, car parking, access and other design considerations, the resulting development will detract from the quality of the residential environment which the public enjoys.
Findings
Determination of the application requires me to be satisfied that the proposal is consistent with the aims of the LEP, the 2(b) zone objectives, the objectives of the development controls contained in the LEP and the objectives of the DCP.
As the applicant relies on two or three objections, if I find that the standard for landscaping is not met, to those development standards contained in clause 12 of the LEP, determination of these is also required, along with the merit assessment of the application in accordance with s79C of the Environmental Planning and Assessment Act 1979.
The definition of landscaped area is clear and detailed at [14]. For an area to be included in the calculation of landscaped area, it must not be used for driveways, car parking or garbage storage areas. It must be at least 2m wide unless it is located next to a driveway and landscaped with trees and shrubs. For this reason, I find that the landscaped area for the site cannot include either of the landscaped strips within the carparking/front setback area along the side boundaries of the site, the area adjacent to the bin storage, the areas adjacent to the front façade of the building or the shared area that forms part of the disabled parking space, regardless of the treatment of that area, it is an area required for car parking. The shared space is required under the provisions of the Disability (Access to Premises - Buildings) Standards 2010.
Based on the calculations of the experts, the landscaped area is less than that calculated by Ms Shephard however, the lack of dimensions provided on the plan do not allow a precise calculation to be made. I am satisfied however that the development does not satisfy the minimum landscaped area required by clause 12 of the LEP.
Despite the council not pressing the development standard for building envelope, for consent to be granted, I would still have to uphold the objection to that standard and consider the provisions of clause 12(6).
Having regard to the evidence and the guidance provided by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 I am satisfied, that in relation to the development standard for building envelope, that the objection is well founded and should be upheld. I accept the evidence of Mr Coady that the variation is minor as it only involves the eaves of the building along the side boundaries. Having regard to the objectives of the standard, I am satisfied that the portion of the building that is outside the building envelope results in a development that is compatible with existing housing in the locality and the visual impact of that building in terms of height and bulk are acceptable. There is no evidence that the section of eaves increase overshadowing to adjoining properties and the structure does no impact on privacy or views. The separation between buildings and site boundaries is satisfactory and accords to other controls contained in the DCP and there is no impact on private open space corridors along the rear fence lines to any property. The eaves do no impact of the area available on site for landscaping or stormwater detention.
In accordance with the requirements of clause 12(6), I am also satisfied that the variation to the building envelope, through the provision of eaves, improves the design, external appearance and utility of the building. This is because the design is consistent with other dwellings in the locality and the eaves improve the external appearance of the building and provide shading of windows. For these reasons, I consider that compliance with the development standard for building envelope would be unreasonable and unnecessary in the circumstances of the case. I also consider that variation of the control would achieve the objectives of SEPP1 and am satisfied that there are no matters of significance for State or regional environmental planning. Because departure from the control is contemplated under clause 12(6), there would be no public benefit in maintaining the planning control in this case.
I cannot draw similar conclusions in relation to the development standard for landscaped open space. In this regard, I prefer the evidence of Ms Shephard and agree that the objectives of the standard must be read as a whole and that the height and bulk of a development are a direct response to the scale of a building that is determined, amongst other things, from the landscaped area. I do not agree with Mr Coady's proposition that the development makes generous provision for landscaping at the front of the site. His reliance on the shared area of the disabled parking space and the area below the vehicle overhang confirm Ms Shephard's evidence that the proposal represents an overdevelopment of the site. For that reason, I am not satisfied that compliance with the landscaped area is unreasonable or unnecessary in the circumstances of the case.
Having regard to the objectives of the standard, the development is not site-responsive development at a scale which is compatible with existing housing because the visual bulk of the building has not been mitigated by appropriate landscaped areas. Whilst I accept Mr Coady's evidence that many properties in the vicinity of the site are not landscaped with extensive plantings, to be compatible does not require a development to be the same. The provision of additional landscaped areas, particularly areas which comply with the 2m minimum width called for in the definition would assist in reducing the visual bulk of the building and impact of the carpark. I accept Ms Shephard's evidence that the treatment of the front setback area does not protect or enhance the environmental features characteristic of the residential zone through the provision of sufficient space for effective landscaping.
For these reasons, the objection to the development standard cannot be upheld and consent cannot be granted.
Similarly, whilst a separate standard, the fact that the shade structure encroaches the rear setback area further confirms the proposal represents an over-development of the site and does not preserve the private open space corridor along rear fence lines and is therefore not consistent with the objectives of the development standard for rear setbacks. Having regard to the provisions of clause 12(7), I do not consider the fact that the use of the structure has to be associated with the dwelling house use for the exclusion provisions to apply, rather it would have to be a type of structure that would ordinarily be associated with a dwelling house. I consider a shade structure is a type of structure typically erected within the backyards of dwelling houses however, its size further reduces the effective area available for landscaping. For that reason, I do not consider compliance with the rear setback control is unreasonable or unnecessary.
If I am wrong in my determination of the threshold issues applying the development standards, it is appropriate that a merit assessment of the application is undertaken. In accordance with the requirements of clause 9 of the LEP, I must be satisfied that the development is consistent with the aims of the LEP. Having regard to the evidence, I am not. In particular, those aims for residential character and residential amenity are not met. That is because the limited area available for landscaping within the front setback does not reflect the features or qualities of traditional detached houses that are surrounded by gardens, nor does it enhance the essential character and identity of the established area or safeguard the residential amenity.
The objectives of the DCP must also be considered (clause 9(2)(b) before consent can be granted. Having regard to the evidence, I am not satisfied the objectives for child care centres, as set out in Part 3, Section 3.3 clause 4 are met. In particular, the DCP provides a clear planning framework for the development of child care services. The development fails to comply with a number of the controls that establish the framework, in particular, the amenity, location, vehicle access and parking and landscaping controls. A minimum site width of 22m is required and, for the reasons outlined above that go to the narrow width of landscaping, the reduced length of parking bays, the failure to provide a separate pedestrian path, variation of that control is not appropriate.
Similarly, the requirement that the character of the development is compatible with the surrounding residential development goes to the lack of landscaping within the front setback area. The majority of that area is hardstand and the width available for landscaping is inadequate to provide effective screening to mitigate the adverse visual impact.
The proximity of the site to the intersection of Warburton Crescent and Dampier Avenue and, in particular, the failure to comply with the driveway location established in AS2890.1 is another unsatisfactory aspect of the application and area of non-compliance with the planning framework established under the DCP objectives and does not ensure safe and easy forward access to and from the street.
Conclusion
As I am not satisfied that the objection under SEPP1 should be upheld, the proposed development cannot be approved. Upholding a SEPP1 objection is a pre condition that must be satisfied before the development can be approved on consideration of the merits. A merits review of the application also shows that it does not pass the threshold test imposed by clause 9 of the LEP as it is inconsistent with the aims of the plan, the objectives of the zone and development controls contained within the LEP. The inability of the site to satisfy the development standards in clause 12 and to provide safe access reflects the failure to comply with the 22m frontage required under the DCP and the unsuitability of the location of the site in close proximity to an intersection. The development is therefore inconsistent with the objectives of the DCP that relate to child care centres.
The Order of the Court are:
(1) The appeal is dismissed.
(2) DA12/0420 for demolition of an existing two storey dwelling and construction of a new building and use the ground level of that building as a 20 place child care centre and the upper level as a dwelling at 85 Warburton Crescent Werrington County is refused consent.
(3) The exhibits, other than exhibits A, B and 2, can be returned.
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Sue Morris
Commissioner of the Court
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Decision last updated: 02 August 2013
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